Anti-DMCA crusaders fight for the right to crack DRM

Every three years, the Copyright Office lets the public ask for exemptions to …

Every three years, the US Copyright Office reviews the Digital Millennium Copyright Act's most controversial section—the ban on circumventing DRM, even for legal uses. The Copyright Office has the authority to issue three-year exemptions to that blanket ban, carving out space for DVD-ripping film school profs, for instance, or making it legal for people to bypass DRM in order to unlock cell phones.

Tomorrow, four days of hearings begin on a new round of exemptions (read the schedule). What's on the table? Jailbreaking your iPhone, busting the DRM on music and movies if authentication servers ever die, ripping clips from DVDs for noncommercial use, breaking digital locks on DRM schemes that "compromise the security of personal computers," and cracking open DRM on subscription streaming video "where the provider has only made available players for a limited number of platforms," among others.

Advocates of new exemptions are aiming high here, especially when you consider how stingy the Copyright Office has been in handing out such exemptions over the years. We spoke to three such advocates who will be testifying before the Copyright Office over the next few weeks, often while sitting right next to lawyers from Apple Computer, the DVD Copy Control Association, Time Warner, the MPAA, and others who oppose them. Given the odds against them, how are they preparing for the hearings—and do they hold out any chance of success?

Fred von Lohmann, Electronic Frontier Foundation

The three-year exemption process looked so broken back in 2005 that the EFF issued a screed about how the process wasn't worth participating in. One of the authors was Fred von Lohmann, EFF's super-sharp copyright lawyer, who tomorrow will find himself defending not one but three new exemption requests. What changed?

Von Lohmann tells us that the process has improved since that report, and in 2006 the Copyright Office changed some of the "procedural hurdles" that EFF had complained about. "So while we continue to be frustrated by the Office's continued resistance to personal uses that many consumers take for granted (like backing up digital media)," von Lohmann says, "we are focusing our efforts on the kinds of proposals that the Copyright Office has shown at least some willingness to entertain. This does not diminish the fact that the DMCA rulemaking has not, and will never, address many of the major the problems that the DMCA's anticircumvention provisions have caused for consumers."

This time around, EFF is pushing for exemptions that would allow cell phone unlocking, cell phone jailbreaking, and the use of DVD clips in noncommercial videos where the intended use is "fair." Given the extreme skepticism shown by the Copyright Office to these sorts of "let us rip DVDs when the intended use is fair" type arguments, this may be a tough sell.

Von Lohmann acknowledges as much, saying, "I will admit, however, that the Copyright Office has been generally hostile to DVD-related exemptions in previous rulemakings, so we'll have to wait and see. But the importance of an exemption has become particularly obvious in light of the RealDVD litigation, where Hollywood has again renewed its argument that the DMCA trumps fair use where DVDs are concerned. If that's right, then fair users need a DMCA exemption."

Even with some precedent for cell phone unlocking exemptions, researching, writing, and then defending DMCA exemption proposals is a lot of work. "We have put a considerable amount of time and effort into understanding how iPhone jailbreaking and unlocking work in preparation for the rulemaking," von Lohmann says. And, even if successful, the exemptions remain in place for only three years.

Me three. While I agree that the DMCA is overbearing and way too far-reaching, the intent of it is good, I think. It needs some refinement, for sure, as there are way too many grey areas that big content is leveraging to it's advantage. The possibility of 3-year exemptions on specific issues is better than nothing if you can get it, but it's just not good enough.

I liken the efforts of these lobbyists to the same as those of the folks trying to get marijuana legalized. It's just not going to happen without a wholesale rewrite of the law.

I'm glad there are those who are fighting the good fight for a little common sense in the world of IP protection. Too bad it will never happen. Not that the DMCA has stopped the proliferation of copy protection cracks from drowning the copyright holders in a sea of despair.

The government is so far removed from any sort of common sense, moral, ethics, and good judgement that I see this going nowhere. You've got money and you have the power to make congress look good or bad in your media, then you have their attention. Individual rights and liberties can shove right off.. nobody in government (that has any sort of decision making power) cares because appealing to the lowest common denominator is what gets you elected, not personal philosophy, rightousness, or good judgement.

While I am generally on the side of the EFF it seems that the one thing they are good at is losing court cases.

The sad part is that all of this should be a non-issue and nobody should have to care at all.

This process is so convoluted and really is just a practice in humoring the consumer. The DMCA and those that back it could care less about consumers.

Personally, I find it outrageous that DRM circumvention is not 100% allowed when it is for scientific and security research. That alone should not have to be something begged for every three years. That right there shows just how paranoid these IP lobbyists are about the whole thing. The fact that they will not even let computer security researchers find and plug holes in consumer computers.

I am seriously getting sick of this. The fact that the US is calling on Canada to "tighten up" on their copyright laws drives me nuts.

The freaking government really needs to get their heads out of the money bags of lobbyists and start listening to the people that vote for them. It is time for serious change. Too bad the majority of people in this blasted country are completely clueless and are willing to only care what their politicians are doing during election time. The rest of the term, they could care less.

I think we should go to a monarchy. No more wasteful election campaigns, and a truly absolute ruler is incorruptible-- there's nothing you can offer him he can't just take by fiat (and probably would, just to spite you)

Most of the exemption requests will be either opposed or limited by DC lawyer Steve Metalitz, who represents the "Joint Commenters"—a who's who of trade associations including the RIAA, the MPAA, the Business Software Alliance, the Entertainment Software Association, etc.

The way that's written, it sounds like Metalitz has some kind of near final say for what's good and bad. Why is that? If he's just another lobbyist, how is he limiting anything?

Most of the exemption requests will be either opposed or limited by DC lawyer Steve Metalitz, who represents the "Joint Commenters"—a who's who of trade associations including the RIAA, the MPAA, the Business Software Alliance, the Entertainment Software Association, etc.

The way that's written, it sounds like Metalitz has some kind of near final say for what's good and bad. Why is that? If he's just another lobbyist, how is he limiting anything?

so silly, companies need to protect against piracy of their software, to lock phones to be able to sell them cheaper than they cost to make, and yes. to protect from DVD or Blu-Ray piracy. look what happened to CD's without any DRM.

the music biz is hurting massively. DRM isn't fun for people who just want to rip, share, but it does have its place.

Originally posted by DrunkBender:so silly, companies need to protect against piracy of their software, to lock phones to be able to sell them cheaper than they cost to make, and yes. to protect from DVD or Blu-Ray piracy. look what happened to CD's without any DRM.

the music biz is hurting massively. DRM isn't fun for people who just want to rip, share, but it does have its place.

You miss the one problem with all of that though: DRM is only useful against people who want to rip (which should be fair use). People who want to pirate (share) are going to find ways around ANY DRM scheme ever made. To make a physical analogy, locks only keep honest people honest.

If one thing has been proven time and time again, its that you can't legislate morals. You can try, but it always fails.

And then you say the music biz is hurting.. no chance this could be because of embracing digital distribution as the future, they stubbornly dig their heels in and insist that the model of the CD single is the way to go?

Remember how VCR's were going to kill the movie industry? Then DVD's? Then the internet?Remember how tape sharing was going to kill the music industry? Then radio? Then the internet?

Apply palm to face. That's the only appropriate course of action here.

Due to the extensive use of encryption in its makeup and communication protocols, is it not the case that trying to reverse-engineer and otherwise thwart the operation and expansion of the Conficker worm is a violation of the DMCA?

If so, isn't this the sort of argument that should be included in security research exception requests?

Nothing's going to happen in this. Nothing has happened yet, and nothing will happen until Big Content doesn't own the government, which I see about as likely as 2010 heralding our new Mars colony and faster-then-light travel.

The reason that one lawyer decides the course of US policy is who's paying his bills. He personally likely doesn't give a flying damn one way or the other, but the money those fat cats are pouring into his pockets (likely) is enough to make him work his ass off to satisfy their interests. All lawyers have golden tongues.

TK, I agree one thousand percent with what you're saying. DB, look at what's happened to CDs WITH DRM! Exactly the same as the ones without DRM. Odd, huh? I wonder why?

Originally posted by DrunkBender:so silly, companies need to protect against piracy of their software, to lock phones to be able to sell them cheaper than they cost to make, and yes. to protect from DVD or Blu-Ray piracy. look what happened to CD's without any DRM.

the music biz is hurting massively. DRM isn't fun for people who just want to rip, share, but it does have its place.

Please don't feed the Obvious Trolls. It just makes them less afraid of humans.

I'm still waiting for all of the wonderful consumer benefits of DRM to be enumerated by someone with a straight face who isn't a professional liar (i.e. not a lawyer). I'm also wondering what, exactly, is the legal definition of DRM in this case. WTF does cell phone unlocking have to do with DRM?

I think the mail issue with the Big Content, as you call them, is that they are a monopoly. I can understand new content costing more to produce than it did, say, 50 years ago, but it cost next to nothing in manufacturing and distribution. Then how can the price of content that was produced 30 years ago go up when there is no longer any manufacturing and distribution costs involved? Does the consumer have the option of purchasing this content from any other source that is not forced to enrich this monopoly? For a lot of old material, the artists don't get anything at all!

This issue of DRM should be addressed in conjunction with the business model of the content oligarchs, as an abuse of monopoly and price gouging.

Originally posted by ReaderBot:I'm also wondering what, exactly, is the legal definition of DRM in this case. WTF does cell phone unlocking have to do with DRM?

Very good question. Why do I have to be forced to buy another phone if I want to use a local pay-as-you-go service when I travel overseas? AT&T cannot prevent me from doing it. They just annoy me by not letting me use my iPhone there.

And the funny thing is when I am overseas for three weeks AT&T still charges me even if I am not using their network.It would only be fair to use the three week's payment to pay the roaming charges to whatever european network I may use, so that it would not cost any extra.

Civil disobedience is the only answer. This DMCA exemption process might be nice in theory, and we should do everything to help the good guys engaged in it, but the only thing effecting real change is widespread, sustained civil disobedience. And maybe pressuring our Congress critters.

However, as a IP creator, I'm within my rights to put any ridiculous restrictions I like as to the use of my product. If, for example, I wrote a computer program, and insisted that one of the licensing restrictions was that you had to always wear a red dress while you used the program, then in the absence of any other agreement, your choice, as a consumer, would be to either buy my program and wear that red dress, or else refrain from buying my program.

Advocating "civil disobedience" and using my program while wearing a blue dress instead or a red one is not a moral right. You don't have any right at all to my work except the rights I grant you. The fact that I'm cuckoo-bananas in my requirements isn't really relevant. Your choice is to take it or leave it.

Your choice with regard to DRM is similar. You can either buy the product and agree to the restrictions, or you can refrain from buying the product. That's kind of it.

However, as a IP creator, I'm within my rights to put any ridiculous restrictions I like as to the use of my product. If, for example, I wrote a computer program, and insisted that one of the licensing restrictions was that you had to always wear a red dress while you used the program, then in the absence of any other agreement, your choice, as a consumer, would be to either buy my program and wear that red dress, or else refrain from buying my program.

Originally posted by PS Bucky:Advocating "civil disobedience" and using my program while wearing a blue dress instead or a red one is not a moral right. You don't have any right at all to my work except the rights I grant you. The fact that I'm cuckoo-bananas in my requirements isn't really relevant. Your choice is to take it or leave it.

Oh, except the rights YOU grant? I wasn't aware that this was a dictatorship, and that you were the dictator with sole power to grant and deny everyone else; I thought this was a democracy, where the rule of law was made and paid for by the people you think you control completely. If you want people to do as you say without question, I expect you to have your own army capable of enforcing your mandates upon the rest of the world. Until then, you don't have a millionth of the power or superiority you think you do.

Sorry, the arrogance you display just makes me sick. Speaking as an (actual) IP creator, you're more of a liability to capitalism and fair pay for work than pirates, with that attitude.

as a IP creator, I'm within my rights to put any ridiculous restrictions I like as to the use of my product. If, for example, I wrote a computer program, and insisted that one of the licensing restrictions was that you had to always wear a red dress while you used the program, then in the absence of any other agreement, your choice, as a consumer, would be to either buy my program and wear that red dress, or else refrain from buying my program.

a simple person would think this way, then go drive their car and sleep in their bed and such.

point being is that those other things you use, like your car and stuff, they were made by people too... people who CREATED that stuff, but you will notice that they can't do whatever they want. ford cannot make a car with no seatbelts and exploding tires and say "if you choose to buy this car, you agree to drive it naked and we are only liable for $5 in damages, hey there are other cars, buy them." though again, that makes sense in little minds, in the real world, we are better off when wannabe dictators can't just say whatever they want.

(i wish computer "engineers" were forced to take a look at other engineering disciplines where there are rules and people are held accountable for their actions.)

On that note, I don’t think the answer to DRM is to ban it. there should just be regulation such that if your DRM ever causes a paying customer to not be able to use the product they bought, they can get a full refund at any time up to 90 years or when the copyright expires. (again, accountability is all that is needed)

Pamela Jones in Groklaw’s Latest News Picks wrote: “It may be your automobile; but it’s Apple’s business, associated with the apps, not the gadget alone, and it’s Apple’s brand. Brand matters, and brand is built on quality. If, for example, someone passed a law that everyone could put whatever they wish on Groklaw and I lost control over that, I’d shut Groklaw down rather than see it ruined. From dealing with spammers, I know exactly how ruined it would quickly be. Apple says they block bandwidth hog apps and porn and other things they don’t want to be associated with, like Baby Shaker. I’d want to be able to do that too, because it affects the brand, not just the business model. At the end of the day, this will be decided on the basis of the legal issues the EFF has raised, but common sense tells me that Apple won’t sell certain gadgets that people really love if this exemption is approved. This is part of the periodic review of the DMCA, and the article has a link to the 9 proposed exemptions being considered now.”

Yeah, great. I guess everyone that ever publishes anything should just make it free to the world all the time out of the goodness of their hearts and because they've got nothing better to do than to make free content for others. Or don't bother. Yeah, that makes complete sense...

Originally posted by Vipre77:Yeah, great. I guess everyone that ever publishes anything should just make it free to the world all the time out of the goodness of their hearts and because they've got nothing better to do than to make free content for others. Or don't bother. Yeah, that makes complete sense...

as a IP creator, I'm within my rights to put any ridiculous restrictions I like as to the use of my product. If, for example, I wrote a computer program, and insisted that one of the licensing restrictions was that you had to always wear a red dress while you used the program, then in the absence of any other agreement, your choice, as a consumer, would be to either buy my program and wear that red dress, or else refrain from buying my program.

a simple person would think this way, then go drive their car and sleep in their bed and such.

point being is that those other things you use, like your car and stuff, they were made by people too... people who CREATED that stuff, but you will notice that they can't do whatever they want. ford cannot make a car with no seatbelts and exploding tires and say "if you choose to buy this car, you agree to drive it naked and we are only liable for $5 in damages, hey there are other cars, buy them." though again, that makes sense in little minds, in the real world, we are better off when wannabe dictators can't just say whatever they want.

(i wish computer "engineers" were forced to take a look at other engineering disciplines where there are rules and people are held accountable for their actions.)

On that note, I don’t think the answer to DRM is to ban it. there should just be regulation such that if your DRM ever causes a paying customer to not be able to use the product they bought, they can get a full refund at any time up to 90 years or when the copyright expires. (again, accountability is all that is needed)

Don't be dense. Copyright law, patent law, and corporate liability are all completely different legal elements that go into any product design. Your argument doesn't hold any water. Actually, it doesn't hold much of anything, really.

Design requirements such as airbags, seatbelts, etc. are not at all related to copyright as you've presented here. The governments in countries in which the products will be sold often have a set of minimum design criteria/features that the product must contain for a street-legal vehicle. Ford's hands are tied in these requirements, but within those rules, they are free to make whatever new designs they wish. None of this has anything to do with copyrights.

I will agree, however, that they cannot tell you how to do things unrelated to the operation of the product (i.e.: the clothing you are/are not wearing while driving). To a large extent, they also cannot dictate how you use the product once it's off the dealer lot. They can, however, dictate whether or not certain parts or entire vehicles are for "off-road use only," for example. Harley-Davidson does this very frequently on some of their Screamin' Eagle parts, for another example. Ford can and always does, however, make statements regarding liability related to the ownership/operation of the vehicle. This information is covered in the warranty documentation, but again, this is all unrelated to copyright.

Even ignoring these glaring problems with your comparison, Ford still retains all rights in where and how the product is sold* and they can dictate the price they are commanding for the product in question. Ford can specify which countries will get a particular vehicle. They can choose which dealerships will get allotments of vehicles to sell. They set the MSRP. They establish the factory warranty period. They establish which features to include/exclude within the minimum feature requirements set by the government. No one is entitled to a new, free Ford simply because Ford decided to bring it to market.

* Only for the original sale in "as new" condition from a Ford dealer. After the original sale, any subsequent owner or used car dealer may then establish their own criteria for sales. Where to advertise, sell "as is" or fix it up a bit first, and pricing.

Care to explain what you mean about computer engineers not having to be held as accountable for their actions? The DMCA was not a law crafted by CE's. It was created by politicians and lobbyists with agendas. For the record, I'm a mechanical engineer, but I know some CE's and they have as many rules as us ME's have to deal with. Ever heard of IEEE? The FCC? CE? Underwriters Laboratories? They have plenty of people to answer to.

Originally posted by Vipre77:Yeah, great. I guess everyone that ever publishes anything should just make it free to the world all the time out of the goodness of their hearts and because they've got nothing better to do than to make free content for others. Or don't bother. Yeah, that makes complete sense...

Why you gotta be a dick? Sorry, Scooter. Can I call you Scooter? You seem like a Scooter to me. Anyway, no MickyD's for me. I got me a spiffy sheet of paper from Milwaukee School of Engineering 9 years ago saying I'm an engineer now, but that's neither here nor there. My reading comprehension is just fine, but I'm not so sure about yours. At any rate, it has nothing to do with this topic.

PS Bucky is right in his "take it or leave it" sentiment, even though he isn't exactly right about the particulars of what you can and can't specify in the terms of use of a copyright agreement. It's an all-or-nothing agreement. You take it the way it is or you don't. You buy the DRM-laden game or you don't. You can't legally cherry-pick which parts of the agreement you want to abide by unless the copyright agreement is amended and ratified by both parties. If you don't take the agreement, your options then are to get the content via illegal means (warez torrents) or pass on the content altogether.

mx44's comment suggested that the content producer has the choice to publish the content or not. While technically true, this is where I have a problem. Not publishing content is generally not a very sustainable business model, now is it? The only real option for people making a living by producing content is to copyright and publish it. The question is quite simply bullshit.

Originally posted by Vipre77:Why you gotta be a dick? Sorry, Scooter. Can I call you Scooter? You seem like a Scooter to me. Anyway, no MickyD's for me. I got me a spiffy sheet of paper from Milwaukee School of Engineering 9 years ago saying I'm an engineer now, but that's neither here nor there. My reading comprehension is just fine, but I'm not so sure about yours. At any rate, it has nothing to do with this topic.

PS Bucky is right in his "take it or leave it" sentiment, even though he isn't exactly right about the particulars of what you can and can't specify in the terms of use of a copyright agreement. It's an all-or-nothing agreement. You take it the way it is or you don't. You buy the DRM-laden game or you don't. You can't legally cherry-pick which parts of the agreement you want to abide by unless the copyright agreement is amended and ratified by both parties. If you don't take the agreement, your options then are to get the content via illegal means (warez torrents) or pass on the content altogether.

mx44's comment suggested that the content producer has the choice to publish the content or not. While technically true, this is where I have a problem. Not publishing content is generally not a very sustainable business model, now is it? The only real option for people making a living by producing content is to copyright and publish it. The question is quite simply bullshit.

Aha. So maybe I was mistaken. Perhaps yours was not an act of incompetence, but rather an act of malice. Namely, you intentionally built a straw man against the nonexistent argument that everyone should publish everything for free as the only alternative to totalitarian publishing licenses.

Furthermore, mx44's comment was 100% correct. If the publisher publishes, it WILL be used against the terms of the license, and it WILL be stolen; the publisher at no point has any control over these things. They have one choice only: do they publish it, accept that these things are going to happen (regardless of morality or legality), and take what they can get in terms of revenue, or do they not publish it (actually, to be safe it would be best not to make the thing at all, since leaks are so common these days), prevent piracy entirely, and get no revenue. There is no third option, and no amount of legislation can change the situation for publishers.

So, then. You are intentionally trying to confuse the discussion by creating straw men. I apologize for the supposition that you were an idiot. Apparently you're just someone who will attempt to "win" at any cost, even if it means resorting to what you know are deception and logical fallacies.

But you're right about one thing: I do tend to be a dick to people who mutilate logic. Character flaw.